Driving this Holiday Season: Understanding Offences of Impaired Driving and Dangerous Driving

The holiday season is upon us. Every year, it feels as though everyone is trying to accomplish in one month what they set out to do in a year. The days of our lives and the roads grow busier. Then, factor in the holiday office parties, inclement weather and poor road conditions. Together, it is a recipe for disaster.

Many people are so used to driving that they don’t realize it is a privilege rather than a right, and one that is quite easy to lose. It often helps to go back to the basics and review the Criminal Code of Canada, R.S.C., 1985, c. C-46 (the “Code”). Subsection 320.12(a) of the Code, which establishes fundamental principles for impaired and dangerous driving laws, states that “operating a conveyance is a privilege that is subject to certain limits in the interests of public safety that include licensing, the observance of rules and sobriety.” It is easy to lose this privilege by exceeding one or more of those boundaries. In some instances, the loss of this privilege may lead to both life-altering and criminal consequences.

This November, drivers might have heard on the news that Ontario is developing new accountability measures in addition to the Safer Roads and Communities Act, 2024 to address impaired and dangerous driving. The newly proposed measures include the initiative that would require offenders convicted of impaired driving to pay ongoing child support if they kill a child’s parent or guardian. The Ontario government news release stated that there were 182 deaths caused by impaired driving in 2021, including 96 deaths due to drinking and driving occurrences and 86 fatalities due to drugs.

According to the Nov. 25 news release, the Ontario government is seeking to strengthen penalties, suggesting to “impose a lifetime driving ban for anyone convicted of dangerous driving causing death and introduce new roadside licence suspensions for dangerous driving behaviour.”

Impaired driving and dangerous driving are both illegal and equally serious criminal offences. They are technically rather different when it comes to the Crown proving their elements in court and for counsel defending the accused. Notably, consumption of alcohol, short of the point of impairment, is not the element of the offence of dangerous operation.

However, it is “a relevant factor for the trier of fact in considering the mens rea element of the offence of dangerous driving”: R. v. McLennan, 2016 ONCA 732, at para. 27. For a trial judge to convict someone of dangerous driving, the driver does not have to be an impaired driver. Moreover, the accused could even be acquitted of impaired driving but convicted of dangerous operation on the same facts, including the consumption of alcohol on the day of the offence: R. v. Settle, 2010 BCCA 426, at para. 60. See also R. v. McLennan, 2016 ONCA 732, at paras. 23 and 27; and R. v. King, 2019 ONCJ 302, at paras. 90-91.

Section 320.14, Operation while impaired, focuses on the person’s ability to operate the conveyance and whether it was “impaired to any degree” by alcohol or drug or their combination.

In dealing with the offence under s. 320.13, Dangerous operation, the court is concerned with the “manner of driving,” which is “dangerous to the public,” as well as “the nature, condition and use of the place.”

The public does not need to be actually present but expected to be present in the area of the alleged offence: R. v. Mueller, [1975] O.J. No. 1190, 29 C.C.C. (2d) 243, at para. 7. The Court of Appeal has recently summarized the actus reus of dangerous driving in R. v. Akhtar, 2022 ONCA 279, at para. 29, citing the Mueller decision. The Supreme Court of Canada focused on the element of offence of dangerous operation, the manner of driving, in R. v. Roy, 2012 SCC 26. See also R. v. Greenberg, 2024 ONCJ 542.

The court is not strictly concerned with the consequences of the alleged dangerous driving either. Although the consequences of driving, ranging from moderate to severe, might help shed light on the manner of driving and the risks involved: 2025 Martin’s Annual Criminal Code (Annotated), p. 642.

The Supreme Court of Canada explained the mens rea for dangerous driving in R. v. Beatty, 2008 SCC 5, at para. 7 (“Beatty”). First, the modified objective test requires a “marked departure” from the civil negligence-based offence standard. Second, “evidence about the accused’s actual state of mind, if any, may also be relevant in determining the presence of sufficient mens rea”: Beatty, at para. 43; and Greenberg, at para. 11.

Whether someone misses their exit on a highway, drives in heavy snow or consumes alcohol — albeit short of the point of impairment — at a holiday party before heading home, the choice is always there: avoid making hasty and reckless decisions when it comes to one’s driving privilege. Drive safely this holiday season.

Disclaimer: This was originally published by Law360 Canada (www.law360.ca), a division of LexisNexis Canada.